Vannerson v. Pendleton's Administrators

16 Miss. 452

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

The bill of exceptions in this case, was not taken until after the judgment was rendered ; of consequence, it does not bring up any errors which occurred during the progress of the trial.

The plaintiff has filed an affidavit, as the basis of an application for a new trial, in which he states, that he was pre vented from reaching the court, before the trial took place, by high water; that being in the habit of attending the court regularly in person, he had no counsel who knew anything of the facts of the case; that his demand is just and true, and that injustice has been done him on the trial. Two other affidavits were filed, tending to support this statement.

The absence of a party from court, from unavoidable circumstances, may be good ground of new trial. Graham on New Trials, 161; Brooks v. Whitson, 7 S. & M. 513. The application will be watched with jealousy, and the power exercised with caution, but if there be no reason to believe that the cause is feigned, a new trial will be granted to prevent a failure of justice.

In this case, the party has shown enough to authorize the granting of his application.

Judgment reversed and new trial awarded.